State v. Clofer

80 So. 3d 639, 11 La.App. 5 Cir. 494, 2011 La. App. LEXIS 1435, 2011 WL 5983302
CourtLouisiana Court of Appeal
DecidedNovember 29, 2011
DocketNo. 11-KA-494
StatusPublished
Cited by7 cases

This text of 80 So. 3d 639 (State v. Clofer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clofer, 80 So. 3d 639, 11 La.App. 5 Cir. 494, 2011 La. App. LEXIS 1435, 2011 WL 5983302 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

laThe defendant/appellant, Howard Gofer, appeals his convictions and sentences arguing that the trial court erred in denying the motion to suppress his statement because the proper procedures afforded a juvenile were not followed.

Factual and Procedural Background

On March 8, 2010, Howard Clofer was charged by bill of information with attempted first degree murder in violation of La. R.S. 14:27:30 (Count One) and two counts of armed robbery in violation of La. R.S. 14:64 (Counts Three and Four).1' Howard pled not guilty at the arraignment and later moved to suppress his statement, identification, and the evidence seized from his home. All motions were denied. The State amended the bill on January 10, 2011, to dismiss Count One and to add Howard to Count Two of the bill. During the Boykin hearing, which occurred that same day, Howard withdrew his guilty pleas and pled guilty, under State v. Crosby, 338 So.2d 584 (La.1976), to two counts of armed robbery and one count of attempted armed robbery. Pursuant to a plea agreement, Howard was | ¡¡sentenced to 17 years imprisonment in the Department of Corrections without the benefit of probation, parole, or suspension of sentence, with the sentences to be served concurrently. In this appeal, Howard argues that the motion to suppress his statement should have been granted because [641]*641the protective measures afforded a juvenile were not followed.

Sgt. Russell Varmall, of the Jefferson Parish Sheriffs Office, and Ms. Patrice Clofer, Howard’s mother, testified at the suppression hearing.

Sgt. Varmall testified that he participated in the investigation which led to Howard’s arrest. He testified that he arrested Howard at his home, a duplex housing unit, in which Howard’s aunt, Ms. Sharon Roussell, lived next door. As he perfected the arrest, Ms. Roussell came outside to see what was happening. Sgt. Varmall informed her that Howard was being arrested and that he needed to speak with Howard’s mother because he was a juvenile. Ms. Roussell then telephoned Ms. Clofer, and Sgt. Varmall spoke to her briefly. He testified that he informed Ms. Clofer that he needed to take Howard to the bureau for questioning but that a parent needed to be present. He further stated that Ms. Clofer told him she was hours away and gave Howard’s aunt permission to accompany him to the bureau. Sgt. Varmall testified that he transported Ms. Roussell and Howard in his unit to the bureau for questioning.

Once they arrived at the detective’s bureau, Sgt. Varmall presented Howard and his aunt with the “Juvenile Rights Form.” He testified that he reviewed the form with both of them and neither of them indicated they had questions about the form or their rights. He then gave Howard and his aunt an opportunity to discuss the rights among themselves but did not leave the room for them to do so privately. Both Howard and his aunt signed the form at 3:04 P.M. acknowledging that they understood the rights. Sgt. Varmall testified that Howard gave two audio-taped ^statements. The first statement commenced at 3:41 P.M. and concluded at 3:47 P.M. The second statement commenced at 3:59 P.M. and concluded at 4:05 P.M.

During the first statement, Howard stated that no one had used a gun during the robberies. When that statement concluded, Sgt. Varmall testified that he left the room to go speak with his supervisor about the facts of the case. After realizing there were some inconsistencies, specifically regarding the presence of a gun, Sgt. Var-mall returned to the interview room to question Howard further. It was during the second interview, while his aunt was still present, that Howard admitted that he was armed with a .38 silver and black gun during the first robbery.

Ms. Clofer also testified at the suppression hearing. She testified that her sister telephoned her and explained that the police were there to arrest Howard. She spoke to the detective who told her that Howard was in trouble and needed to be taken to the detective’s bureau for questioning. She stated that she informed the detective that she was in New Orleans and it would take her about three hours to get back. However once the officer told her that a parent needed to be present, she stopped what she was doing and immediately went to the detective’s bureau. She testified that she made it to the detective’s bureau within 45 minutes after speaking with the detective. Once she arrived there and identified herself, she had to wait an additional 30 to 45 minutes before she was allowed to see her son. When she finally saw Howard, the questioning was over. She was then presented with a form authorizing consent to search her home, which she signed at 5:00 P.M.

Ms. Clofer testified that she wanted to be there for the interview and that she arrived at the detective’s bureau as soon as she possibly could. She further testified that though her sister loved Howard, the two of them were not close and How[642]*642ard’s aunt was not someone that he would confide in. She testified that Howard’s aunt did not have his best interest at heart.

UAt the conclusion of the hearing, the trial judge denied the motion to suppress the statement. The trial judge considered the totality of the circumstances and found that Howard made a knowing, intelligent, and voluntary waiver and that he had consulted with his aunt, whom she found to be a concerned adult.

Discussion

In his sole assignment of error, Howard contends that the trial court erred in failing to grant the motion to suppress his statement because the proper protective measures afforded a juvenile were not followed in this case.

At the hearing on a motion to suppress a statement, the State bears the burden of proving the admissibility of the purported statement. La.C.Cr.P. art. 703(D). Before introducing a defendant’s inculpatory statement made during a custodial interrogation, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, and that the statement was made “freely and voluntarily, and not under the influence of fear, intimidation, menaces, threats, inducement or promises.” State v. Rose, 05-770, p. 9 (La.App. 5 Cir. 2/27/06), 924 So.2d 1107, 1111, writ denied, 06-1286 (La.11/22/06), 942 So.2d 554. In reviewing a trial court’s ruling as to the admissibility of a confession, the court’s conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Barton, 02-163 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, writ denied, 03-3012 (La.2/20/04), 866 So.2d 817. A trial court’s ruling will not be overturned on appeal unless it is unsupported by the evidence. Barton, supra, at 1200.

Howard argues that, as a juvenile, he should have been provided with extra safeguards before being allowed to waive his rights. In State v. Fernandez, 96-2719, p. 5 (La.4/14/98), 712 So.2d 485, 487, however, the Louisiana Supreme | fiCourt held that the confession of an accused of any age is valid if it was knowingly and voluntarily given. The Supreme Court noted,

[t]he age of the accused, although an extremely important and extremely relevant factor in determining knowingness and voluntariness, is not absolutely determinative, and the rigid invalidation of an otherwise valid confession because the accused has not quite reached the age of seventeen has no federal or state basis. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
80 So. 3d 639, 11 La.App. 5 Cir. 494, 2011 La. App. LEXIS 1435, 2011 WL 5983302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clofer-lactapp-2011.